Guardianship law applies to matters concerning minor children [someone under the age of 18]. If this is a matter concerning the custody of an adult, in California that matter is referred to as a Conservatorship law.
In some instances, a guardianship of a minor child may be necessary. The great majority of these matters concern instances where one or both of the parents have passed away. Guardianship matters fall under probate court rather than family law court even in instances where the parents are alive.
GUARDIANSHIP LAW WHEN PARENTS ARE LIVING
Where one or more of the parents is alive, the proposed guardian must show that the guardianship is necessary and that the guardianship is in the best interests of the child. As the courts presume that living with the parent is preferable, the guardian must show that being with the parent is actually harmful or detrimental to the child. A guardianship may also be granted if the parent agrees that it is in the best interests of the child.
In looking at a guardianship case, the court will look at where the child has been residing for the past 6 months before the case was filed. In instances where a parent leaves the child with a third party for a significant period of time the court may view that as a factor in determining whether guardianship is in the best interests of the child and whether it would be detrimental to return the child to the parents.
There may be circumstances where one or both of the parents is in jail or where the whereabouts of a living parent are unknown. In those instances, the court may grant guardianship to another relative of friend nominated by one of the parents.
GUARDIANSHIP LAW AND DPS
This action is very different than matters where a child is removed from a parent by Department of Protective Services. Many family members choose to file a private guardianship matter to prevent the child from getting wrapped up in the foster care system.
If you are seeking to obtain custody of a relative or friends child, please contact our office and we can assist you through all steps in this process. We handle contested and uncontested guardianship matters.